April 10, 2010

The Electronic Freedom Foundation (eff.org) is self-described as: “EFF is the leading civil liberties group defending your rights in the digital world.” Typically, a description of the organization elicits a comparison to the ACLU. Both the EFF and the ACLU are comprised of attorneys and other civil libertarians, but that is about where the comparisons actually end.

The ACLU goes out of its way to confront violations of civil liberties wherever they occur across the county. It has a long history of protecting and defending unpopular groups to further the goals of freedom of speech and liberty in general. It is one of the most influential and powerful groups in the history of the country. Comparing the EFF to the ACLU is a joke.

The idea many people have of the EFF is that it is an internet version of the ACLU. But while the ACLU directly steps into cases and the lawyers who work for the ACLU at some times personally intervene, the EFF and its attorneys take a more hands off approach. The EFF focuses on amicus briefs, asking the patent courts to reexamine ridiculous patents, and asking Congress to change laws. This may seem like a fairly potent approach, but it ultimately fails.

First, Amicus Briefs on extremely contested Supreme Court cases tend to be little more than noise. (For an in-depth look at amicus briefs see: “The Amicus Brief: How to be a Good Friend of the Court” by Reagan William Simpson, Mary R. Vasaly – specifically note page 15, discussing the ineffectiveness of amicus briefs in large quantities.) Furthermore, the EFF briefs tend to be similarly worded to those the ACLU has already filed. The ACLU does not limit itself to non-digital activities (good thing for civil liberties), so there is often an overlap between ACLU activities and those of the EFF.

Patent re-exams are a part of the incredibly complex patent litigation structure. After a patent is granted, anyone can ask the courts to reexamine the patent for certain defects, including most commonly, obviousness in light of the prior art. The problem with using this method of attack on blatantly obvious patents is that it can only occur after the patent is granted. Attacking patents in this way is ineffective because the attacker must wait until after the patent is already granted, allowing the patent holder to assert his or her rights in the meantime. Although this is an admittedly light analysis of a heavy subject, it is simply representative of a larger framework of playing catch-up that is the EFF business model.

The most important file sharing case in the U.S. is Capitol Records v. Jamie Thomas. If the EFF were truly what it claims to be, its attorneys would have represented Ms. Thomas, pro-bono throughout the trial instead of sitting on the sidelines waiting to file an amicus brief and “urging” the court to do various things. Thomas’s lack of funds for legal representation, the precedent setting nature of the case, and the plaintiff’s large legal team all combine to represent an embarrassing difference in equity that the EFF claims to stand against.

The EFF is ineffectual at almost everything it does. It postures and self-congratulates. It hosts events, speaks in front of Congress, and files amicus briefs, but it does not take any sort of responsibility. If the EFF were truly the “leading civil liberties group defending your rights in the digital world” as it claims on its website, it would put itself between the oppressors and those who are oppressed. The EFF does not get its hands dirty, and for that, it is ineffective.